Category: Feed your mind!

In Tunisia, women only get half of the inheritance men do. But after much debate, that could change. The country's president just announced a bill will be introduced "as soon as possible" to shift the long-standing law.

Thousands of religious conservatives filled the streets leading up to the announcement to protest a government-sponsored gender equality report. The government had been deciding what to do with the inheritance law for about a year. As that decision brewed, there was also a growing body of support. In March, more than 1,000 people in the country's capital protested for equality.

But even if the new inheritance bill becomes law, citizens would still be allowed to choose Islamic rules anyway as a way to ease the transition.

Read more of this story here from Truthdig RSS by Philip Marcelo / The Associated Press.

BOSTON — Federal immigration agencies have launched a coordinated campaign to arrest and deport immigrants seeking to become legal U.S. residents through marriage, according to documents released this week in a class-action lawsuit filed by the American Civil Liberties Union.

The documents, which include depositions and correspondence from federal officials, show the extent to which officials for the U.S. Citizenship and Immigration Services have been coordinating with their counterparts at Immigration and Customs Enforcement to facilitate arrests at citizenship offices in New England.

The ACLU, in its arguments, criticizes the efforts as a deportation “trap” that violates the constitutional rights of immigrants otherwise following the rules to become legal residents.

“The government created this path for them to seek a green card,” Matthew Segal, legal director for the ACLU of Massachusetts, said in an interview Tuesday. “The government can’t create that path and then arrest folks for following that path.”

A spokesman for USCIS said the agency doesn’t comment on pending litigation, and ICE representatives didn’t immediately respond to requests for comment. The two agencies both fall under Department of Homeland Security oversight.

The ACLU lawsuit argues that Homeland Security regulations created under former President Barack Obama allow immigrants with U.S.-citizen spouses to stay in the country while they seek a green card — even if they’re already subject to deportation.

“That regulation is still the law of the land,” Segal said Tuesday. “So arresting these folks is not about law and order. These are people with a path to legalization and the government is trying to block that.”

The federal government, in seeking to dismiss the lawsuit, argues in part that the federal District Court has no jurisdiction in the matter.

The ACLU’s more than 250-page legal brief includes emails between ICE officials outlining how it coordinates arrests with USCIS in New England.

Andrew Graham, a Boston-based ICE officer, said the agency generally receives from USCIS lists of immigrants seeking legal residency who have already been ordered for deportation, had re-entered the country illegally or were considered “an egregious criminal alien.”

Graham says ICE then works with USCIS to schedule interviews so that ICE agents can be present to make an arrest. He notes ICE prefers to spread out the interviews to ease the workload on its agents and to prevent generating “negative media interest” from the arrests.

“In my opinion, it makes sense for us to arrest aliens with final removal orders as they represent the end of the line in the removal process,” Graham wrote in part. “(A)t the end of the day we are in the removal business and it’s our job to locate and arrest them.”

The ACLU’s legal brief is the latest in the class-action suit it filed earlier this year on behalf of immigrants who have been or fear being separated from their U.S.-citizen spouses.

The case will be argued Aug. 20 in Boston federal court and names five couples, including lead plaintiffs Lilian Calderon and Luis Gordillo, of Rhode Island.

Gordillo is a U.S. citizen, but Calderon is a native of Guatemala who came to the country with her family at the age of 3. She was ordered to leave in 2002 after her father was denied asylum.

The 30-year-old mother of two was detained by ICE in January after she and her husband attended an interview at the USCIS office in Johnston, Rhode Island, to confirm their marriage.

Calderon was released in February after the ACLU challenged the detention.

Read more of this story here from Truthdig RSS by Philip Marcelo / The Associated Press.

BOSTON — Federal immigration agencies have launched a coordinated campaign to arrest and deport immigrants seeking to become legal U.S. residents through marriage, according to documents released this week in a class-action lawsuit filed by the American Civil Liberties Union.

The documents, which include depositions and correspondence from federal officials, show the extent to which officials for the U.S. Citizenship and Immigration Services have been coordinating with their counterparts at Immigration and Customs Enforcement to facilitate arrests at citizenship offices in New England.

The ACLU, in its arguments, criticizes the efforts as a deportation “trap” that violates the constitutional rights of immigrants otherwise following the rules to become legal residents.

“The government created this path for them to seek a green card,” Matthew Segal, legal director for the ACLU of Massachusetts, said in an interview Tuesday. “The government can’t create that path and then arrest folks for following that path.”

A spokesman for USCIS said the agency doesn’t comment on pending litigation, and ICE representatives didn’t immediately respond to requests for comment. The two agencies both fall under Department of Homeland Security oversight.

The ACLU lawsuit argues that Homeland Security regulations created under former President Barack Obama allow immigrants with U.S.-citizen spouses to stay in the country while they seek a green card — even if they’re already subject to deportation.

“That regulation is still the law of the land,” Segal said Tuesday. “So arresting these folks is not about law and order. These are people with a path to legalization and the government is trying to block that.”

The federal government, in seeking to dismiss the lawsuit, argues in part that the federal District Court has no jurisdiction in the matter.

The ACLU’s more than 250-page legal brief includes emails between ICE officials outlining how it coordinates arrests with USCIS in New England.

Andrew Graham, a Boston-based ICE officer, said the agency generally receives from USCIS lists of immigrants seeking legal residency who have already been ordered for deportation, had re-entered the country illegally or were considered “an egregious criminal alien.”

Graham says ICE then works with USCIS to schedule interviews so that ICE agents can be present to make an arrest. He notes ICE prefers to spread out the interviews to ease the workload on its agents and to prevent generating “negative media interest” from the arrests.

“In my opinion, it makes sense for us to arrest aliens with final removal orders as they represent the end of the line in the removal process,” Graham wrote in part. “(A)t the end of the day we are in the removal business and it’s our job to locate and arrest them.”

The ACLU’s legal brief is the latest in the class-action suit it filed earlier this year on behalf of immigrants who have been or fear being separated from their U.S.-citizen spouses.

The case will be argued Aug. 20 in Boston federal court and names five couples, including lead plaintiffs Lilian Calderon and Luis Gordillo, of Rhode Island.

Gordillo is a U.S. citizen, but Calderon is a native of Guatemala who came to the country with her family at the age of 3. She was ordered to leave in 2002 after her father was denied asylum.

The 30-year-old mother of two was detained by ICE in January after she and her husband attended an interview at the USCIS office in Johnston, Rhode Island, to confirm their marriage.

Calderon was released in February after the ACLU challenged the detention.

Read more of this story here from Truthdig RSS by Julia Conley / Common Dreams.

With much of the corporate media’s attention focused on Tuesday on President Donald Trump’s latest reported racist remarks, the president’s Department of Housing and Urban Development (HUD) made its latest move away from its core mission of ensuring all Americans of all races have access to fair housing.

Scandalized by Trump’s use of a racist term for a black former White House staffer? Wait till you hear what his administration is doing to fair housing rules, which were put in place to keep wealthy neighborhoods from excluding poor minorities: https://t.co/ujMnqyWyAW

HUD Secretary Ben Carson announced late Monday that he was moving to roll back the Affirmatively Furthering Fair Housing rule (AFFH), a 2015 regulation the Obama administration passed to ensure that local governments that receive federal funding combat racial segregation in housing. The rule was introduced with the intent of making sure communities were observing the 1968 Fair Housing Act, which banned housing discrimination based on race.

Under AFFH, well-off communities that accept federal grants have been pushed to introduce affordable housing to de-concentrate poverty.

Carson has derided the rule as “social engineering” and claimed on Monday that the rule was “suffocating investment” in distressed neighborhoods.

HUD has argued that the benefits of allowing low-income families to move out of impoverished neighborhoods “are likely limited to certain age and demographic groups,” a theory rejected by Lawrence Katz, an economics professor at Harvard and author of a landmark study on the issue.

“Overall, the research shows that deconcentrating poverty is likely to greatly improve the health and well-being of low-income families and to have long-run economic and educational benefits for the children of low-income families,” Katz told Slate.

Without the AFFH in place, communities will be free to shut low-income families out of middle-class areas.

“You’re going back to communities willfully blinding themselves to patterns of segregation,” Sara Pratt, a former HUD attorney under the Obama administration, toldNBC News. “Without this rule, communities will not do the work to eliminate discrimination and segregation.”

Several civil rights groups sued HUD earlier this year over its efforts to delay implementation of the rule until at least 2020. Fair housing advocates involved in the suit spoke out against Carson’s latest attack on the AFFH on Tuesday.

#AFFH Rule is at the core of #FairHousing Act. It’s about expanding opportunity, investing in communities, and giving people choice. We have joined with other orgs filing a lawsuit to protect this critical rule. https://t.co/kLTSbCuB6P

Read more of this story here from Truthdig RSS by Julia Conley / Common Dreams.

With much of the corporate media’s attention focused on Tuesday on President Donald Trump’s latest reported racist remarks, the president’s Department of Housing and Urban Development (HUD) made its latest move away from its core mission of ensuring all Americans of all races have access to fair housing.

Scandalized by Trump’s use of a racist term for a black former White House staffer? Wait till you hear what his administration is doing to fair housing rules, which were put in place to keep wealthy neighborhoods from excluding poor minorities: https://t.co/ujMnqyWyAW

HUD Secretary Ben Carson announced late Monday that he was moving to roll back the Affirmatively Furthering Fair Housing rule (AFFH), a 2015 regulation the Obama administration passed to ensure that local governments that receive federal funding combat racial segregation in housing. The rule was introduced with the intent of making sure communities were observing the 1968 Fair Housing Act, which banned housing discrimination based on race.

Under AFFH, well-off communities that accept federal grants have been pushed to introduce affordable housing to de-concentrate poverty.

Carson has derided the rule as “social engineering” and claimed on Monday that the rule was “suffocating investment” in distressed neighborhoods.

HUD has argued that the benefits of allowing low-income families to move out of impoverished neighborhoods “are likely limited to certain age and demographic groups,” a theory rejected by Lawrence Katz, an economics professor at Harvard and author of a landmark study on the issue.

“Overall, the research shows that deconcentrating poverty is likely to greatly improve the health and well-being of low-income families and to have long-run economic and educational benefits for the children of low-income families,” Katz told Slate.

Without the AFFH in place, communities will be free to shut low-income families out of middle-class areas.

“You’re going back to communities willfully blinding themselves to patterns of segregation,” Sara Pratt, a former HUD attorney under the Obama administration, toldNBC News. “Without this rule, communities will not do the work to eliminate discrimination and segregation.”

Several civil rights groups sued HUD earlier this year over its efforts to delay implementation of the rule until at least 2020. Fair housing advocates involved in the suit spoke out against Carson’s latest attack on the AFFH on Tuesday.

#AFFH Rule is at the core of #FairHousing Act. It’s about expanding opportunity, investing in communities, and giving people choice. We have joined with other orgs filing a lawsuit to protect this critical rule. https://t.co/kLTSbCuB6P

When Trump’s not blaming foreigners for everything that ails America, he’s blaming regulations.

Last week he even blamed regulations for the wildfires now ravaging California. They’re “made so much worse,” he tweeted, “by the bad environmental laws which aren’t allowing massive amount[s] of readily available water to be properly utilized.”

I have news for Trump. California’s tough environmental laws are among America’s (and the world’s) last bulwarks against climate change. And it’s climate change – not regulation – that’s reaping havoc across California as well as much of the rest of the world.

Oh, and Californians are using water very carefully.

Yet Trump is pushing in the opposite direction. He’s now proposing to let cars pollute more and to strip California of its right to set higher air-quality rules.

It’s not just the environment. Trump is also gutting regulations that protect consumers, workers, investors, students, and children.

The Trump regime is now contemplating a loophole through which companies can apply to use asbestos – a known carcinogen banned by most developed countries – in making adhesives, roofing material, floor tile, and other products.

What’s the justification for all of this? “The Administration’s agenda of deregulation is unleashing the … true potential of American businesses,” trumpets Trump’s Council of Economic Advisors in its 2018 economic report.

Don’t get me wrong. Some regulations should be eliminated because they’re just too costly relative to the protections they provide.

But many regulations protect you and me from being harmed, fleeced, shafted, injured, or sickened by corporate products and services. And they’re worth it.

Yet Trump is taking a meat axe to all regulations. In so doing he’s creating a new form of trickle-down economics – where the benefits go to corporate executives and major investors, while the costs and risks land on the rest of us.

This may increase the profits of the chemical industry. But it will leave the rest of us less protected from toxins that can make their way into dry-cleaning solvents, paint strippers, shampoos and cosmetics.

Again, more profits for business. But more cost and risk for the rest of us.

Trump is weakening banking regulations put in place after the financial crisis of 2008, even rolling back the so-called Volcker Rule that prevented banks from gambling with commercial deposits.

The result: More profits for the banks, more risk on you and me.

It would be one thing if corporations were plowing all these extra profits into higher pay for average workers. Maybe that would help make up for some of the extra costs and risks borne by average Americans.

Trump’s gang of industry lobbyists and executives who are busy deregulating the same industries they once represented will no doubt do very well when they head back into the private sector.

The rest of us won’t do well. We may not know for years the extent we’re unprotected – until the next financial collapse, next public health crisis, next upsurge in fraud, or next floods or droughts because the EPA failed to do what it could to slow and reverse climate change.

Make no mistake. Trump’s attack on regulation is just another form of trickle-down economics – where the gains go the top, and the risks and losses trickle down.

Several countries in the European Union have come to an agreement to take in more than 200 migrants.

More than 100 of those migrants were aboard the search and rescue ship Aquarius, which has been stranded in the Mediterranean Sea since last week. Malta has agreed to let it dock.

The Spanish government said it's the first operation of this type of distribution between several European states.

Under the deal, Spain, France, Germany, Portugal and Luxembourg will each take in a number of the migrants who were on the Aquarius. Malta also rescued more than 100 migrants on Monday, and 60 of them will be taken in by other EU member countries.

This has been an ongoing crisis in Europe. In June, Spain took in more than 600 migrants who were stranded on a ship in the Mediterranean after Italy refused to let it dock.

And in July, Italy helped rescue 450 migrants from a fishing boat in the Mediterranean. Those migrants were also divided between several countries.

Tuesday's agreement was made in an effort to split the responsibility of taking in stranded migrants between more than one country. The Maltese government called it "a concrete example of European leadership and solidarity."

Aaron Nielson is an associate law professor at Brigham Young University and the weekly author of D.C. Circuit Review–Reviewed at the Notice & Comment Blog.

The U.S. Court of Appeals for the District of Columbia Circuit is an unusual court. Because it disproportionately hears lawsuits involving the United States, it often wades into the “famously murky” waters of the political-question doctrine, as well as the equally murky doctrines of standing, final agency action, and ripeness and mootness. In fact, the local rules require parties in “direct review” cases—cases in which challenges to an administrative agency action must be brought directly in the D.C. Circuit, instead of in a district court first—to address standing. All of these issues involve questions of justiciability: whether, as a threshold matter, a federal court has the authority at all to decide the legal merits of a case. I can attest, moreover, that the D.C. Circuit takes justiciability seriously. When I was a clerk, a judge promised to take any clerk to lunch who found a meritorious, unbriefed justiciability issue.

It is safe to say that Judge Brett Kavanaugh has spent untold hours thinking about justiciability. When I teach the political question doctrine, I assign the en banc decision in El-Shifa Pharmaceutical Industries Co. v. United States, a case I discuss below about a 1998 U.S. missile strike on a Sudanese pharmaceutical plant. Kavanaugh’s concurrence is well worth your time.

For this post, I’ve been asked to survey Kavanaugh’s justiciability opinions and consider how his confirmation might change the Supreme Court’s approach to these issues. I don’t think he would change it all that much. For one thing (to be sure, with some notable exceptions), there is often a great deal of consensus among the justices on justiciability, so even if Kavanaugh were a revolutionary (and he’s not), he wouldn’t be the swing vote anyway. I’m also not sure there would be much difference between Kavanaugh and Justice Anthony Kennedy for many of these kinds of cases, so even if the court were divided, a Kennedy/Kavanaugh switch wouldn’t shift things. Even so, Kavanaugh’s justiciability opinions merit a read because they show his mind at work.

Article III standing

Kavanaugh has addressed standing many times during his tenure on the D.C. Circuit. “Standing” (and this is a simplification) is the constitutional requirement that before a court can decide the merits of a plaintiff’s legal claim, the plaintiff must show that it is likely that the defendant caused or will cause an actual injury to the plaintiff. In other words, in lawsuits challenging regulations—the D.C. Circuit’s bread and butter—it’s not enough that a person, or a public interest group, or a business is merely upset with a new regulation or believes the regulation is unlawful. Whether a regulation is likely to cause some actual injury can be a very tricky question, but one with high stakes: If a plaintiff lacks standing, the court cannot constitutionally hear the plaintiff’s legal claims, no matter how meritorious. My sense is that although Kavanaugh enjoys thinking through standing puzzles, he understands the stakes for the litigants of a ruling on standing and tries to keep his analysis grounded in common sense.

Even when Kavanaugh rejects a claim, he sometimes uses his discussion of standing to show that he has heard the plaintiff’s argument and taken it seriously. In Howard R.L. Cook & Tommy Shaw Found. ex rel. Black Employees of Library of Cong., Inc. v. Billington, a group of employees sued the Library of Congress for not extending to them the same benefits (such as meeting space, etc.) that it extended to other employee groups. While holding that the group failed to state a claim, Kavanaugh (joined by Judges David Tatel and David Sentelle) stressed that it had standing to sue and that its concern merited meaningful recognition:

The Library argues that plaintiffs have failed to allege an injury in fact because “the privileges to employees who participate … in recognized organizations are insubstantial.” If the Library views the privileges of recognition as so insubstantial, perhaps it would have been better off granting recognition and avoiding litigation. In fact, however, the benefits of recognition are not trivial, and denial of those benefits constitutes an injury in fact.

Nor is this an isolated example. In Coalition for Mercury-Free Drugs v. Sebelius, Kavanaugh (joined by Judges Judith Rogers and Stephen Williams) rejected on standing grounds a challenge to the Food and Drug Administration’s decision to allow “vaccines that contain thimerosal, a mercury-based preservative” but went out of his way to “recognize plaintiffs’ genuine concern.” And in Newdow v. Roberts, the majority dismissed a challenge to the use of the phrase “so help me God” in presidential inaugural ceremonies. Kavanaugh concurred in the judgment, but he would have held that the plaintiffs had standing.

And even when he has sided against challengers, he has kept the door open for them to take another shot. In Public Citizen, Inc. v. National Highway Traffic Safety Administration, Public Citizen maintained that it had standing to challenge a tire-safety standard on the ground that the standard would increase the risk of injury to the organization’s members. Kavanaugh (joined by Judges Sentelle and Raymond Randolph) disagreed: “Under Public Citizen’s theory of probabilistic injury, after an agency takes virtually any action, virtually any citizen—because of a fractional chance of benefit from alternative action—would have standing to obtain judicial review of the agency’s choice.” Nonetheless, Kavanaugh gave Public Citizen another chance to see if it could fit within a narrower theory; Sentelle declined to “join the majority’s decision to allow Public Citizen a further attempt to establish standing.” The following year, the court (in a per curiam decision) again concluded there was no standing.

Kavanaugh’s approach to standing is generally pretty practical. In Energy Future Coalition v. Environmental Protection Agency, biofuel manufacturers challenged the EPA’s refusal to allow a biofuel to be used as a test fuel. Even though the regulation in question was directed at vehicle manufacturers, not biofuel manufacturers, Kavanaugh (joined by Tatel and Judge Cornelia Pillard) found standing:

If the Government prohibits or impedes Company A from using Company B’s product, does Company B have standing to sue? … [S]uppose the District of Columbia bans or makes it harder for concession stands to sell hot dogs. Does a local hot dog manufacturer have standing to sue? … In such cases, both Company A and Company B are an object of the action (or forgone action) at issue, so there is ordinarily little question that they have standing under Lujan. So it is here.

Similarly, in Hall v. Sebelius, Kavanaugh (joined by Judge Douglas Ginsburg) opened his opinion this way:

This is not your typical lawsuit against the Government. Plaintiffs here have sued because they don’t want government benefits. They seek to disclaim their legal entitlement to Medicare Part A benefits for hospitalization costs. Plaintiffs want to disclaim their legal entitlement to Medicare Part A benefits because their private insurers limit coverage for patients who are entitled to Medicare Part A benefits.

Kavanaugh ruled against the plaintiffs on the merits (as it turns out, you can turn down the money, but not the entitlement to the money—although Judge Karen Henderson disagreed), but he concluded that they had standing “because their private insurance has been curtailed as a direct result of their legal entitlement to Medicare.” Still, Kavanaugh does not think common sense is a substitute for record evidence supporting a particular standing theory. In Communities for a Better Environment v. EPA, Kavanaugh (joined by Williams and Judge Janice Rogers Brown) rejected on standing grounds a challenge to the EPA’s refusal to set a secondary standard for carbon monoxide because he agreed with the agency that the connection to climate change was too speculative: “For the reasons identified by EPA, petitioners’ theory of causation is simply a bridge too far given the current record.”

To be sure, not everyone agrees with every Kavanaugh standing opinion. In In re Navy Chaplaincy, a group of Protestant chaplains sued to enjoin the Navy from allegedly using its retirement program to favor Catholic chaplains. Kavanaugh (joined by Judge Laurence Silberman) concluded there was no standing, explaining (among many other points; this one should be read in full) that “mere personal offense to government action does not give rise to standing to sue.” Rogers sharply dissented: “The court ignores all of this precedent in adopting the novel conception that appellants are not harmed for purposes of standing under the Establishment Clause unless the Navy itself directly uses religious words or symbols as occurred in the religious display cases.”

Kavanaugh also does not always agree with his colleagues. In Morgan Drexen, Inc., v. Consumer Financial Protection Bureau, Rogers, joined by Pillard, dismissed a challenge to the CFPB’s authority on standing grounds. In his short dissent, Kavanaugh stated that the CFPB “is regulating a business that [the attorney] engages in. That is enough for standing. We have a tendency to make standing law more complicated than it needs to be.” And in Grocery Manufacturers Association v. EPA, he disagreed with Sentelle, who ruled that members of the food industry lacked prudential standing (a form of standing that isn’t constitutionally based) to challenge an EPA ethanol rule because it would increase demand for corn: “This is Economics 101 and requires no elaborate chain of reasoning.” (Tatel’s short concurrence is also worth a read.)

The political question doctrine

At least as a matter of vote tallies, it is also unlikely that a Justice Kavanaugh would meaningfully change the Supreme Court’s approach to the political question doctrine (i.e., the doctrine under which some courts will not decide some questions that should be addressed by the other branches). InZivotofsky v. Clinton, Chief Justice John Roberts (writing for a good chunk of the court) held that determining whether “Jerusalem, Israel” could be included as a birthplace location on a passport was justiciable. On the D.C. Circuit, Kavanaugh—joined by Rogers and Ginsburg—voted (unsuccessfully) to rehear en banc the decision that the Supreme Court later reversed. After Zivotofsky, the Supreme Court’s path may be set for a while.

That said, Kavanaugh’s analysis may win some adherents. In El-Shifa Pharmaceutical Industries Co. v. United States, mentioned above, Kavanaugh—joined in full by then-Chief Judge Sentelle and in part by Ginsburg and Rogers—concurred in an en banc judgment that dismissed claims brought by a pharmaceutical company and its owner after a factory in Sudan was destroyed by a U.S. missile strike. Arguing that the suit should have been dismissed for failure to state a claim rather than on justiciability grounds, Kavanaugh strongly disagreed with both the majority’s decision to apply the political question doctrine and its analysis:

The key point for purposes of my political question analysis is this: Plaintiffs do not allege that the Executive Branch violated the Constitution. Rather, plaintiffs allege that the Executive Branch violated congressionally enacted statutes that purportedly constrain the Executive. … If a court refused to give effect to a statute that regulated Executive conduct, it necessarily would be holding that Congress is unable to constrain Executive conduct in the challenged sphere of action. … Applying the political question doctrine in statutory cases … would systematically favor the Executive Branch over the Legislative Branch.

Candidly, I’m not sure who is right in El-Shifa; that’s why it is a good case to assign students. And Kavanaugh’s analysis should give pause to those who say he is reflexively pro-executive. The main point of his opinion in El-Shifa is to stress that Congress has a role too.

In Harbury v. Hayden, Kavanaugh (joined by Randolph and Williams) affirmed a dismissal of claims brought by a woman against various U.S. government officials allegedly involved in killing her husband during Guatemala’s civil war in the 1990s. Noting that “[t]he political question doctrine is an important tenet of separation of powers and judicial restraint,” albeit one “notorious for its imprecision,” Kavanaugh applied the doctrine because he concluded that D.C. Circuit precedent compelled the result.

Final agency action

In recent years, the Supreme Court has issued two important—and (mostly) unanimous—decisions on what is reviewable final agency action: U.S. Army Corps of Engineers v. Hawkes Co., Inc. and Sackett v. EPA. In both, the Supreme Court expanded the scope of reviewable decisions. Given that uniformity, it is again unlikely that a Justice Kavanaugh would make much of a difference here.

Nonetheless, Kavanaugh has addressed the topic, and he takes the final agency action requirement seriously. His most important case on this subject may be In re Murray Energy Corp. There, a number of petitioners, including a coalition of states, tried to challenge the EPA’s Clean Power Plan before it was finalized. Kavanaugh (joined by Judge Thomas Griffith) concluded that “[p]roposed rules meet neither of the two requirements for final agency action.” Henderson wrote separately. Similarly, in National Mining Association v. McCarthy, a mining association sought review of an EPA guidance memo. Kavanaugh (joined by Griffith and Judge Sri Srinivasan) concluded there was no final agency action: “One might think that an agency memo entitled ‘Final Guidance’ would be final. But that would be wrong, at least under the sometimes-byzantine case law. An agency action is final only if it is both ‘the consummation of the agency’s decisionmaking process’ and a decision by which ‘rights or obligations have been determined’ or from which ‘legal consequences will flow.’”

Ripeness and Mootness

Finally, I also doubt that a Justice Kavanaugh would fundamentally change the Supreme Court’s approach to ripeness and mootness. “Ripeness” essentially asks whether it’s too early for a court to decide the merits of claim, and “mootness” essentially asks whether it’s too late. Nonetheless, he has issued several noteworthy opinions on the subject.

His most significant ripeness decision is probably State National Bank of Big Spring v. Lew, which reflects a nuanced approach to justiciability. Kavanaugh (joined by Rogers and Pillard), confronted challenges to “the constitutionality of various provisions of the Dodd-Frank Act.” On one hand, he concluded that “a regulated entity” need not violate a law to challenge the constitutionality of an agency’s structure, nor the constitutionality of the president’s appointment of the agency’s director. On the other hand, he rejected the notion that challengers could attack the possible future exercise of an allegedly unconstitutional power when the question of how that power might be used was speculative.

Another noteworthy opinion is Kavanaugh’s dissent in American Bird Conservancy, Inc. v. Federal Communications Commission (per curiam, Rogers and Judge Merrick Garland). The petitioners challenged the agency’s approach to communication towers. Yet the FCC was still evaluating the effects of those towers on birds. Kavanaugh compared the situation to one in which a petitioner challenges an order while the agency is still considering a petition for reconsideration and stressed that “[d]ismissing this case on ripeness grounds would serve the interests of judicial economy, permit the Executive Branch to carefully re-examine and resolve environmental issues related to communications towers and birds on a nationwide basis, and impose minimal hardship on the petitioners who are themselves participating in the nationwide rulemaking proceeding.”

As to mootness, in Hamdan v. United States, Kavanaugh (joined by Sentelle and Ginsburg) addressed whether an appeal of a conviction by a military tribunal was moot once the detainee was released from custody. Kavanaugh analogized to a conviction in an ordinary court, in which case a direct appeal is generally not mooted by release. Ginsburg concurred to note his agreement with Kavanaugh’s reading of precedent but also his discomfort with that precedent. (This opinion presumably will receive some attention for its merits analysis; the mootness aspect, however, is important too.)

Conclusion

There is a lot more that could be said, but this post is long enough. Unless you are deep in the weeds of “Admin Law” and “Fed Courts” (give it a try; it isn’t a bad place to be), justiciability is not the jazziest topic. Here is my bottom-line assessment: Although not everyone will agree with all of his justiciability opinions, Kavanaugh’s views on the whole strike me as pretty mainstream. And that is not a bad thing. Justiciability can be fuzzy (sometimes to a fault), but the D.C. Circuit takes it seriously, and Kavanaugh is no exception. Should he be confirmed, I expect that trend will continue.

Aaron Nielson is an associate law professor at Brigham Young University and the weekly author of D.C. Circuit Review–Reviewed at the Notice & Comment Blog.

The U.S. Court of Appeals for the District of Columbia Circuit is an unusual court. Because it disproportionately hears lawsuits involving the United States, it often wades into the “famously murky” waters of the political-question doctrine, as well as the equally murky doctrines of standing, final agency action, and ripeness and mootness. In fact, the local rules require parties in “direct review” cases—cases in which challenges to an administrative agency action must be brought directly in the D.C. Circuit, instead of in a district court first—to address standing. All of these issues involve questions of justiciability: whether, as a threshold matter, a federal court has the authority at all to decide the legal merits of a case. I can attest, moreover, that the D.C. Circuit takes justiciability seriously. When I was a clerk, a judge promised to take any clerk to lunch who found a meritorious, unbriefed justiciability issue.

It is safe to say that Judge Brett Kavanaugh has spent untold hours thinking about justiciability. When I teach the political question doctrine, I assign the en banc decision in El-Shifa Pharmaceutical Industries Co. v. United States, a case I discuss below about a 1998 U.S. missile strike on a Sudanese pharmaceutical plant. Kavanaugh’s concurrence is well worth your time.

For this post, I’ve been asked to survey Kavanaugh’s justiciability opinions and consider how his confirmation might change the Supreme Court’s approach to these issues. I don’t think he would change it all that much. For one thing (to be sure, with some notable exceptions), there is often a great deal of consensus among the justices on justiciability, so even if Kavanaugh were a revolutionary (and he’s not), he wouldn’t be the swing vote anyway. I’m also not sure there would be much difference between Kavanaugh and Justice Anthony Kennedy for many of these kinds of cases, so even if the court were divided, a Kennedy/Kavanaugh switch wouldn’t shift things. Even so, Kavanaugh’s justiciability opinions merit a read because they show his mind at work.

Article III standing

Kavanaugh has addressed standing many times during his tenure on the D.C. Circuit. “Standing” (and this is a simplification) is the constitutional requirement that before a court can decide the merits of a plaintiff’s legal claim, the plaintiff must show that it is likely that the defendant caused or will cause an actual injury to the plaintiff. In other words, in lawsuits challenging regulations—the D.C. Circuit’s bread and butter—it’s not enough that a person, or a public interest group, or a business is merely upset with a new regulation or believes the regulation is unlawful. Whether a regulation is likely to cause some actual injury can be a very tricky question, but one with high stakes: If a plaintiff lacks standing, the court cannot constitutionally hear the plaintiff’s legal claims, no matter how meritorious. My sense is that although Kavanaugh enjoys thinking through standing puzzles, he understands the stakes for the litigants of a ruling on standing and tries to keep his analysis grounded in common sense.

Even when Kavanaugh rejects a claim, he sometimes uses his discussion of standing to show that he has heard the plaintiff’s argument and taken it seriously. In Howard R.L. Cook & Tommy Shaw Found. ex rel. Black Employees of Library of Cong., Inc. v. Billington, a group of employees sued the Library of Congress for not extending to them the same benefits (such as meeting space, etc.) that it extended to other employee groups. While holding that the group failed to state a claim, Kavanaugh (joined by Judges David Tatel and David Sentelle) stressed that it had standing to sue and that its concern merited meaningful recognition:

The Library argues that plaintiffs have failed to allege an injury in fact because “the privileges to employees who participate … in recognized organizations are insubstantial.” If the Library views the privileges of recognition as so insubstantial, perhaps it would have been better off granting recognition and avoiding litigation. In fact, however, the benefits of recognition are not trivial, and denial of those benefits constitutes an injury in fact.

Nor is this an isolated example. In Coalition for Mercury-Free Drugs v. Sebelius, Kavanaugh (joined by Judges Judith Rogers and Stephen Williams) rejected on standing grounds a challenge to the Food and Drug Administration’s decision to allow “vaccines that contain thimerosal, a mercury-based preservative” but went out of his way to “recognize plaintiffs’ genuine concern.” And in Newdow v. Roberts, the majority dismissed a challenge to the use of the phrase “so help me God” in presidential inaugural ceremonies. Kavanaugh concurred in the judgment, but he would have held that the plaintiffs had standing.

And even when he has sided against challengers, he has kept the door open for them to take another shot. In Public Citizen, Inc. v. National Highway Traffic Safety Administration, Public Citizen maintained that it had standing to challenge a tire-safety standard on the ground that the standard would increase the risk of injury to the organization’s members. Kavanaugh (joined by Judges Sentelle and Raymond Randolph) disagreed: “Under Public Citizen’s theory of probabilistic injury, after an agency takes virtually any action, virtually any citizen—because of a fractional chance of benefit from alternative action—would have standing to obtain judicial review of the agency’s choice.” Nonetheless, Kavanaugh gave Public Citizen another chance to see if it could fit within a narrower theory; Sentelle declined to “join the majority’s decision to allow Public Citizen a further attempt to establish standing.” The following year, the court (in a per curiam decision) again concluded there was no standing.

Kavanaugh’s approach to standing is generally pretty practical. In Energy Future Coalition v. Environmental Protection Agency, biofuel manufacturers challenged the EPA’s refusal to allow a biofuel to be used as a test fuel. Even though the regulation in question was directed at vehicle manufacturers, not biofuel manufacturers, Kavanaugh (joined by Tatel and Judge Cornelia Pillard) found standing:

If the Government prohibits or impedes Company A from using Company B’s product, does Company B have standing to sue? … [S]uppose the District of Columbia bans or makes it harder for concession stands to sell hot dogs. Does a local hot dog manufacturer have standing to sue? … In such cases, both Company A and Company B are an object of the action (or forgone action) at issue, so there is ordinarily little question that they have standing under Lujan. So it is here.

Similarly, in Hall v. Sebelius, Kavanaugh (joined by Judge Douglas Ginsburg) opened his opinion this way:

This is not your typical lawsuit against the Government. Plaintiffs here have sued because they don’t want government benefits. They seek to disclaim their legal entitlement to Medicare Part A benefits for hospitalization costs. Plaintiffs want to disclaim their legal entitlement to Medicare Part A benefits because their private insurers limit coverage for patients who are entitled to Medicare Part A benefits.

Kavanaugh ruled against the plaintiffs on the merits (as it turns out, you can turn down the money, but not the entitlement to the money—although Judge Karen Henderson disagreed), but he concluded that they had standing “because their private insurance has been curtailed as a direct result of their legal entitlement to Medicare.” Still, Kavanaugh does not think common sense is a substitute for record evidence supporting a particular standing theory. In Communities for a Better Environment v. EPA, Kavanaugh (joined by Williams and Judge Janice Rogers Brown) rejected on standing grounds a challenge to the EPA’s refusal to set a secondary standard for carbon monoxide because he agreed with the agency that the connection to climate change was too speculative: “For the reasons identified by EPA, petitioners’ theory of causation is simply a bridge too far given the current record.”

To be sure, not everyone agrees with every Kavanaugh standing opinion. In In re Navy Chaplaincy, a group of Protestant chaplains sued to enjoin the Navy from allegedly using its retirement program to favor Catholic chaplains. Kavanaugh (joined by Judge Laurence Silberman) concluded there was no standing, explaining (among many other points; this one should be read in full) that “mere personal offense to government action does not give rise to standing to sue.” Rogers sharply dissented: “The court ignores all of this precedent in adopting the novel conception that appellants are not harmed for purposes of standing under the Establishment Clause unless the Navy itself directly uses religious words or symbols as occurred in the religious display cases.”

Kavanaugh also does not always agree with his colleagues. In Morgan Drexen, Inc., v. Consumer Financial Protection Bureau, Rogers, joined by Pillard, dismissed a challenge to the CFPB’s authority on standing grounds. In his short dissent, Kavanaugh stated that the CFPB “is regulating a business that [the attorney] engages in. That is enough for standing. We have a tendency to make standing law more complicated than it needs to be.” And in Grocery Manufacturers Association v. EPA, he disagreed with Sentelle, who ruled that members of the food industry lacked prudential standing (a form of standing that isn’t constitutionally based) to challenge an EPA ethanol rule because it would increase demand for corn: “This is Economics 101 and requires no elaborate chain of reasoning.” (Tatel’s short concurrence is also worth a read.)

The political question doctrine

At least as a matter of vote tallies, it is also unlikely that a Justice Kavanaugh would meaningfully change the Supreme Court’s approach to the political question doctrine (i.e., the doctrine under which some courts will not decide some questions that should be addressed by the other branches). InZivotofsky v. Clinton, Chief Justice John Roberts (writing for a good chunk of the court) held that determining whether “Jerusalem, Israel” could be included as a birthplace location on a passport was justiciable. On the D.C. Circuit, Kavanaugh—joined by Rogers and Ginsburg—voted (unsuccessfully) to rehear en banc the decision that the Supreme Court later reversed. After Zivotofsky, the Supreme Court’s path may be set for a while.

That said, Kavanaugh’s analysis may win some adherents. In El-Shifa Pharmaceutical Industries Co. v. United States, mentioned above, Kavanaugh—joined in full by then-Chief Judge Sentelle and in part by Ginsburg and Rogers—concurred in an en banc judgment that dismissed claims brought by a pharmaceutical company and its owner after a factory in Sudan was destroyed by a U.S. missile strike. Arguing that the suit should have been dismissed for failure to state a claim rather than on justiciability grounds, Kavanaugh strongly disagreed with both the majority’s decision to apply the political question doctrine and its analysis:

The key point for purposes of my political question analysis is this: Plaintiffs do not allege that the Executive Branch violated the Constitution. Rather, plaintiffs allege that the Executive Branch violated congressionally enacted statutes that purportedly constrain the Executive. … If a court refused to give effect to a statute that regulated Executive conduct, it necessarily would be holding that Congress is unable to constrain Executive conduct in the challenged sphere of action. … Applying the political question doctrine in statutory cases … would systematically favor the Executive Branch over the Legislative Branch.

Candidly, I’m not sure who is right in El-Shifa; that’s why it is a good case to assign students. And Kavanaugh’s analysis should give pause to those who say he is reflexively pro-executive. The main point of his opinion in El-Shifa is to stress that Congress has a role too.

In Harbury v. Hayden, Kavanaugh (joined by Randolph and Williams) affirmed a dismissal of claims brought by a woman against various U.S. government officials allegedly involved in killing her husband during Guatemala’s civil war in the 1990s. Noting that “[t]he political question doctrine is an important tenet of separation of powers and judicial restraint,” albeit one “notorious for its imprecision,” Kavanaugh applied the doctrine because he concluded that D.C. Circuit precedent compelled the result.

Final agency action

In recent years, the Supreme Court has issued two important—and (mostly) unanimous—decisions on what is reviewable final agency action: U.S. Army Corps of Engineers v. Hawkes Co., Inc. and Sackett v. EPA. In both, the Supreme Court expanded the scope of reviewable decisions. Given that uniformity, it is again unlikely that a Justice Kavanaugh would make much of a difference here.

Nonetheless, Kavanaugh has addressed the topic, and he takes the final agency action requirement seriously. His most important case on this subject may be In re Murray Energy Corp. There, a number of petitioners, including a coalition of states, tried to challenge the EPA’s Clean Power Plan before it was finalized. Kavanaugh (joined by Judge Thomas Griffith) concluded that “[p]roposed rules meet neither of the two requirements for final agency action.” Henderson wrote separately. Similarly, in National Mining Association v. McCarthy, a mining association sought review of an EPA guidance memo. Kavanaugh (joined by Griffith and Judge Sri Srinivasan) concluded there was no final agency action: “One might think that an agency memo entitled ‘Final Guidance’ would be final. But that would be wrong, at least under the sometimes-byzantine case law. An agency action is final only if it is both ‘the consummation of the agency’s decisionmaking process’ and a decision by which ‘rights or obligations have been determined’ or from which ‘legal consequences will flow.’”

Ripeness and Mootness

Finally, I also doubt that a Justice Kavanaugh would fundamentally change the Supreme Court’s approach to ripeness and mootness. “Ripeness” essentially asks whether it’s too early for a court to decide the merits of claim, and “mootness” essentially asks whether it’s too late. Nonetheless, he has issued several noteworthy opinions on the subject.

His most significant ripeness decision is probably State National Bank of Big Spring v. Lew, which reflects a nuanced approach to justiciability. Kavanaugh (joined by Rogers and Pillard), confronted challenges to “the constitutionality of various provisions of the Dodd-Frank Act.” On one hand, he concluded that “a regulated entity” need not violate a law to challenge the constitutionality of an agency’s structure, nor the constitutionality of the president’s appointment of the agency’s director. On the other hand, he rejected the notion that challengers could attack the possible future exercise of an allegedly unconstitutional power when the question of how that power might be used was speculative.

Another noteworthy opinion is Kavanaugh’s dissent in American Bird Conservancy, Inc. v. Federal Communications Commission (per curiam, Rogers and Judge Merrick Garland). The petitioners challenged the agency’s approach to communication towers. Yet the FCC was still evaluating the effects of those towers on birds. Kavanaugh compared the situation to one in which a petitioner challenges an order while the agency is still considering a petition for reconsideration and stressed that “[d]ismissing this case on ripeness grounds would serve the interests of judicial economy, permit the Executive Branch to carefully re-examine and resolve environmental issues related to communications towers and birds on a nationwide basis, and impose minimal hardship on the petitioners who are themselves participating in the nationwide rulemaking proceeding.”

As to mootness, in Hamdan v. United States, Kavanaugh (joined by Sentelle and Ginsburg) addressed whether an appeal of a conviction by a military tribunal was moot once the detainee was released from custody. Kavanaugh analogized to a conviction in an ordinary court, in which case a direct appeal is generally not mooted by release. Ginsburg concurred to note his agreement with Kavanaugh’s reading of precedent but also his discomfort with that precedent. (This opinion presumably will receive some attention for its merits analysis; the mootness aspect, however, is important too.)

Conclusion

There is a lot more that could be said, but this post is long enough. Unless you are deep in the weeds of “Admin Law” and “Fed Courts” (give it a try; it isn’t a bad place to be), justiciability is not the jazziest topic. Here is my bottom-line assessment: Although not everyone will agree with all of his justiciability opinions, Kavanaugh’s views on the whole strike me as pretty mainstream. And that is not a bad thing. Justiciability can be fuzzy (sometimes to a fault), but the D.C. Circuit takes it seriously, and Kavanaugh is no exception. Should he be confirmed, I expect that trend will continue.